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Comment by arethuza | Hacker News Reader

If you rejected the idea of copyright don't you therefore also reject the idea of open source licenses (aren't all software licenses based on the idea of copyright)?

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Civil Law systems (e.g. much of continental Europe) make no distinction between licences and contracts, so the licences would still be enforceable under contract law in the absence of copyright law. This of course leaves the glaring exceptions of Common Law systems, such as the US, UK, India and Australia. IANAL, so I have no idea if it would be feasible to rewrite e.g. the GPL to work under Common Law contract law.

IANAL either (although married to one!) - what about the matter of consideration as a requirement for a contract in some jurisdictions (although apparently not my native Scotland).

i.e. Might there not be a requirement to pay a nominal fee to enter into a contract-based "license" in some places? Which would seem odd.... :-)

  It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. [1]

Sounds like the things GPL (etc) prohibit/promise themselves might count.

[1]: http://en.wikipedia.org/wiki/Consideration

Yes, but the only reason you need a license is because copyright law prevents you from copying the work without one. Without copyright, you don't need to subscribe to any license or contract to copy and redistribute the work.

Under US law, consideration has long been a specter haunting the enforceability of open source licenses--specifically enforcement by the user against the copyright holder.

Here's the problem: If the copyright holder gains nothing in the transaction that the license governs, then the license is not an enforceable contract. Thus, the user cannot enforce the terms of the license against the copyright holder. The copyright holder could, for example, revoke the license at any time and demand everyone stop using the open source software.

I've always wondered: Could an open source license create consideration by referring to the copyright holder's business or career interest in the software enjoying widespread use and acclaim? As a software developer, I could stand to gain financially from the success of my open source project. For example, I could leverage my notoriety into a well-compensated position. Or I could hire myself out as a consultant to users of the open source software. Or I could start a business, and piggyback off the prominence of the open source software to promote my business.

There are also theories whereby promissory estoppel would protect users against copyright holders. I won't comment on these theories except to say that they're pretty much untested.

This area of law is mostly unsettled. There's far too little case law for anyone to make a definitive pronouncement yet.

I reject copyright because I believe users should be able to modify their software and redistribute their improvements. Open source licenses are a tool I employ to give more users that right, not an end in themselves.

Software and a film script are a bit different though. If source becomes available, anyone can compile and use it. I'm not sure it's fair to the developer if he wrote that code with the intention of selling it and now it's available for free, but at least it's still available. Producing a movie, on the other hand, is well outside of most people's financial capability, and this leak might prevent people who would be capable of turning the script into a film from doing so.

I think even small groups of people with limited resources will find interesting, creative things to with a well-written film script. And as equipment becomes cheaper this will become much more so - compare with how much more effective the home music studio has become over the last few years.

Open source licenses are a form of copyright.

Why is copyright bad? Because it makes it harder for people to improve their stuff and share those improvements, or write new works based on existing works.

Why are open source licenses good? Because they make it easier for people to improve their stuff and share those improvements, or write new works based on existing works.

Also you can think of it just the opposite:

Copyright incentivizes many authors to undertake works they normally might not due to the protections copyright provides. Many authors (who freely publish their books under copyright) probably wouldn't be able to spend 3 years researching and writing a book if they weren't able to get advance money from their publisher.

One is free to use a liberal license or a more restrictive license, both are out there and available to creators.

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